April 8, 1998

Hon. Patricia Haaf
Town Clerk
Town of Fallsburg
P.O. Box 830
South Fallsburg, NY 12779

The staff of the Committee on Open Government is authorized to issue
advisory opinions. The ensuing staff advisory opinion is based solely upon the
information presented in your correspondence.

Dear Ms. Haaf:

I have received your letter of March 24 in which you sought guidance
concerning a request for "exact reproduced duplicate copies of all the
audiotaped recordings" made of a meeting of the Town of Fallsburg Zoning
Board of Appeals on March 19. The applicant also sought a "certification that
the reproduced copies are exact copies." Alternatively, if the tapes cannot be
reproduced, he asked to listen to and copy the recordings with his own
recording device.

From my perspective, the Town is required to reproduce the tape
recordings if it has the ability do so and the applicant pays the appropriate fee
or to make the tape available for listening and copying. In this regard, I offer
the following comments.

First, the Freedom of Information Law pertains to agency records, and
§86(4) of the Law defines the term "record" expansively to include:

"any information kept, held, filed, produced,
reproduced by, with or for an agency or the
state legislature, in any physical form
whatsoever including, but not limited to,
reports, statements, examinations, memoranda,
opinions, folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes."

Based on the foregoing, assuming that the Town maintains a tape recording
of the meeting in question, the tape would constitute a "record" that falls
within the coverage of the Freedom of Information Law.

Second, as a general matter, the Freedom of Information Law is based
upon a presumption of access. Stated differently, all records of an agency are
available, except to the extent that records or portions thereof fall within one
or more grounds for denial appearing in §87(2)(a) through (i) of the Law. In
my view, a tape recording of an open meeting is accessible, for any person
could have been present, and none of the grounds for denial would apply.
Moreover, there is case law indicating that a tape recording of an open
meeting is accessible for listening and/or copying under the Freedom of
Information Law [see Zaleski v. Board of Education of Hicksville Union Free
School District, Supreme Court, Nassau County, NYLJ, December 27, 1978].

Third, if the Town has the ability to prepare a duplicate recording, I
believe that it would be obliged to do so [see §89(3)] upon payment of the
requisite fee. I note that §87(1)(b)(iii) indicates that the fee for copies of
records other than photocopies should be based on the actual cost of
reproduction. If the Town cannot copy the tape recording, an applicant
would have the right to listen to the tape or copy it. In my view, the Town
would not be required to relinquish custody of a tape recording or any record;
however, in this instance, presumably the applicant could place his tape
recorder next to the Town's recorder, and simply permit his machine to record
the sound that emanates from the Town's machine.

Lastly, I believe that the Town is required, on request, to provide a
certification described in by §89(3) of the Freedom of Information Law. That
provision states in relevant part that, in response to a request for a record,
"the entity shall provide a copy of such record and certify to the correctness
of such copy if so requested..." In my view, the certification required by the
Freedom of Information Law does not involve an assertion that the contents
of a record are accurate, but rather that a copy of a record made available in
response to a request is a true copy.

I hope that I have been of assistance.


Robert J. Freeman
Executive Director